Menendez juror's remarks bolster 'friendship' defense

Remarks from a juror excused in the middle of deliberations in Sen. Bob Menendez's bribery trial suggest the panel could wind up deadlocked or voting for acquittal, because many of them may believe the defense's central argument in the case.

Evelyn Arroyo-Maultsby, who was excused from the jury Thursday due to a previous commitment, said she would have acquitted the Democratic senator and co-defendant Salomon Melgen on all counts. She also said most other jurors were favoring acquittal.

Prosecutors allege the senator and the wealthy Florida eye doctor engaged in a bribery scheme in which Menendez took official actions to benefit Melgen in exchange for luxury vacations and flights on Melgen's private jet.

Her comments appeared to indicate at least some, and possibly a majority, of the jury believe the defense's central argument: that Menendez's longtime friendship with Melgen explained the gifts.

"They are friends," Arroyo-Maultsby said. "If I was rich and if I had a lot of money and I want to take my friend somewhere, why can't I?"

The friendship theme ran throughout the defense's case in the nine-week trial, and it was condensed in Menendez attorney Abbe Lowell's closing argument when he used the words "friend," ''friends" or "friendship" more than 80 times.

In his rebuttal to jurors, federal prosecutor Peter Koski echoed the judge's instructions that gifts given "both out of friendship and a corrupt intent" can be considered bribes.

"The defense would like you to believe that friendship and bribery are mutually exclusive, that friendship and bribery cannot co-exist," he said. "Ladies and gentlemen, that is not the law."

Another of Arroyo-Maultsby's comments could also be significant, said former federal prosecutor Michael Weinstein, currently the head of white collar defense and investigations for the Cole Schotz law firm.

"The word I picked up on is that people think Menendez is being 'railroaded,'" he said. "If I'm the prosecution, that's difficult to hear. Then it presents a 'me vs. the government' scenario."

While her comments pierced the veil of secrecy shrouding all jury deliberations, they are unlikely to lead to a mistrial, Weinstein and other former federal prosecutors said. The judge likely will ask jurors individually on Monday if they saw the comments and whether they can still be impartial.

If her account was an accurate reflection of the dynamic inside the jury room, a deadlocked jury might be the best outcome prosecutors could hope for, said Dan R. Alonso, managing director at global compliance firm Exiger and a former federal prosecutor in Brooklyn.

An acquittal would reinforce the view that official bribery cases have become more difficult to prosecute, a trend traced to last year's U.S. Supreme Court ruling that overturned the bribery conviction of former Republican Virginia Gov. Bob McDonnell. That ruling played a significant role in how the jury was instructed in the Menendez trial.

"The law doesn't change because a jury decides that on these facts, the government didn't prove the case beyond a reasonable doubt," Alonso said. "But in practical terms, it could signal to prosecutors that it's pretty tough to prove both the quid pro quo and the official acts in these cases."